Majnken v. Town of Brookhaven

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2019 NY Slip Op 34863(U)

STEPHEN MAJNKEN, Plaintiff, v. TOWN OF BROOKHAVEN, Defendant.

Index No. 15-608560, CAL. No. 18-01196OT, Mot. Seq.# 001

Supreme Court, Suffolk County

August 5, 2019

Unpublished Opinion

MOTION DATE 11-9-18

ADJ. DATE 2-22-19

Coello & Lorenzotti, PLLC Attorney for Plaintiff

Annette Eaderesto, Esq. Brookhaven Town Attorney

HON DENISE F. MOLIA, JUSTICE

DENISE F. MOLIA, JUDGE

Upon the following papers read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by defendant, dated October 2 2018; Notice of Cross Motion and supporting papers Answering Affidavits and supporting papers by plaintiff dated January 15, 2019: Replying Affidavits and supporting papers' by defendant, dated February 19, 2019: Other___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant Town of Brookhaven for summary judgment dismissing the complaint is granted.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Stephen Majnken on May 30, 2014, at approximately 11:30 a.m., as a result of a fall he suffered while walking on Robinwood Drive at its intersection with Margin Drive East, in the Town of Brookhaven, New York. It is alleged that the Town of Brookhaven (the Town) was negligent in causing, allowing and permitting the area where plaintiff fell to be and remain in a dangerous condition, resulting in the plaintiffs fall in a storm drain.

The Town now moves for summary judgment dismissing the complaint due to lack of prior written notice. In support of the motion, it submits, inter alia, copies of the pleadings, the transcript of plaintiffs General Municipal Law § 50-h hearing, the transcripts of the deposition of plaintiff and Marie Angelone, and the affidavits of Linda Sullivan and Marie Angelone. Plaintiff, in opposition to the motion, submits, inter alia, copies of the pleadings, the verified bill of particulars, the transcripts of deposition of plaintiff and Marie Angelone, and the Town's response to plaintiffs document request.

Plaintiff testified at the General Municipal Law § 50-h hearing that on May 30, 2014, as he was walking across Robinwood Drive, a motor vehicle accelerated towards him, so he "jumped" out of the way to avoid the motor vehicle. He testified that in the process of avoiding the vehicle, he tripped or landed in a "pothole" and fell. Plaintiff further testified that a storm drain was contained in the pothole.

Similarly, plaintiff testified at his examination before trial that he was walking om Robinwood Drive when a speeding motor vehicle approached him so he moved out of the way and as a result he stepped into a storm drain. He testified that there was a traffic light at the intersection of William Floyd Parkway and Robinwood Drive, and that the motorist was speeding to make the traffic light.

Marie Angelone was deposed as a witness for the Town. She testified that she has been employed for nine years in the Town's Highway Department, currently as a neighborhood aide. It is part of her job to establish whether or not the Town had prior written notice of the defect or condition which the plaintiff alleges was the cause of his injuries. She testified that she searched the records maintained by the Town after plaintiff filed his notice of claim. Ms. Angelone testified that Robinwood Drive is maintained by the Town's Highway Department. She explained that she researched plaintiffs notice of claim which revealed that plaintiff tripped and fell over a storm drain that was maintained by the County of Suffolk. She further testified that she opened a work order as a result of plaintiff s notice of claim. Ms. Angelone then testified that a Town highway foreman visited the accident site and generated a report that indicated that the storm drain was maintained by the County of Suffolk.

Ms. Angelone further testified that when the town would pave a road such as Robinwood Drive, it would call the County of Suffolk and request that the grate of the storm drain be raised to meet the elevated roadway. She indicated that this communication would be made prior to the paving of the roadway. She also testified that she was not aware of when Robinwood Drive was paved before plaintiffs accident in 2014. Ms. Angelone testified in general when the Town paves a road, it hires a contractor. In addition, she testified that her search revealed no written notice of any defect with regard to the storm drain on Robinwood Drive at or near Margin Drive East.

In her affidavit, Marie Angelone reiterates that her search of the records of the Town's Highway Department for the five years prior to plaintiffs accident revealed no written notice of any defect with regard to the storm drain on Robinwood Drive at or near Margin Drive East. In addition, Ms. Angelone states in her affidavit that the Town does not and did not create, own, maintain, manage, or control the storm drain on Robinwood Drive at or near Margin Drive East. Furthermore, the affidavit of Linda Sullivan, an employee in the Town Clerk's office, sets forth that she had searched the index book and files maintained by her office for the three prior years and found no written complaints with regard to the subject storm drain.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must offer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]; O'Neill v Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987]).

The Town has made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it lacked prior written notice of the allegedly defective condition that caused the plaintiffs accident. Section 84.1 A of the Brookhaven Town Code states as follows:

Prior written notice required. No civil action shall be commenced against the Town of Brookhaven or the Superintendent of Highways for damages or injuries to persons or property sustained by reason of the defective, out-of-repair, unsafe, dangerous or obstructed condition of any highway, street, ...of the Town of Brookhaven, unless, previous to the occurrence resulting in such damages or injuries, written notice of such defective, out-of-repair, unsafe, dangerous or obstructed condition, specifying the particular place and location was actually given to the Town Clerk or Town Superintendent of Highways and there was a failure or neglect within a reasonable time, after the giving of such notice, to repair or remove the defect, danger or obstruction complained of...

Section 84.1 B of the Brookhaven Town Code states as follows:

In the absence of written notice as required above, no civil claim shall be maintained against the Town of Brookhaven; nor shall any civil claim be maintained based on an allegation that such defect, danger or obstruction existed for so long a period of time that the same should have been discovered and remedied in the exercise of reasonable care and diligence; nor a claim that any Town employee possessed actual notice of such defect, danger or obstruction unless written notice is filed with the Town Clerk as required above.

Where as here, a municipality has enacted a prior written notice statute pursuant to Town Law Article 65, it may not be subjected to liability for personal injuries caused by an improperly maintained roadway or sidewalk unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Barnes v Incorporated Vil. of Port Jefferson, 120 A.D.3d 528, 990 N.Y.S.2d 841 [2d Dept 2014]; Carlucci v Village of Scarsdale, 104 A.D.3d 797, 961 N.Y.S.2d 318 [2d Dept 2013]; Wilkie v Town of Huntington, 29 A.D.3d 898, 816 N.Y.S.2d 148 [2d Dept 2006]; Lopez v G&J Rudolph, 20 A.D.3d 511, 799 N.Y.S.2d 254 [2d Dept 2005]; Ganzenmuller v Incorporated Vil. of Port Jefferson, 18 A.D.3d 703, 795 N.Y.S.2d 744 [2d Dept 2005]). "The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" (Gonzalez v Town of Hempstead, ...